July 24, 2013

D.C. Circuit Nominee Under Fire on Capitol Hill

Republican senators grilled Cornelia "Nina" Pillard about her views on hot-button political issues during her confirmation hearing Wednesday, setting her up to be the most controversial of the three nominees for the U.S. Court of Appeals to the D.C. Circuit.

For her part, Pillard came well-prepared to the Senate Judiciary Committee hearing on Capitol Hill. The former Justice Department lawyer and current Georgetown University Law Center professor had ready explanations about her academic writings on topics such as abortion, abstinence-only education and constitutional rights of churches and doctors.

She did not appear to win over Republicans, however, who said Pillard's lack of judicial experience meant they had to turn to those articles to assess her political philosophy and how she might rule from the D.C. Circuit bench.

"I have concerns about your nomination," Senator Ted Cruz (R-Texas) said. "The primary source we have are your academic writings, and those writings to me suggest that your views may well be considerably out of the mainstream."

Pillard's exchange with Cruz was representative of similar questioning from senators Mike Lee (R-Utah), Jeff Flake (R-Ariz.) and Chuck Grassley (R-Iowa). Cruz particularly probed an article Pillard wrote in 2007 about a school district's decision to teach abstinence-only sex education.

Cruz characterized the article as Pillard suggesting that such education could be unconstitutional. "I find that an extraordinary position, and if that is unconstitutional it is hard to imagine what decisions are beyond the ambit of federal courts," Cruz told her.

Pillard responded to questions about the article by saying she would want her two teenage children to be taught how to say 'no' to sex, and she sees no constitutional objection to such programs unless they rely upon and promulgate sex stereotypes.

Then she put these types of writings in context with how she would rule from the bench. "This is an academic article," Pillard said. "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Pillard repeatedly admitted she was wrong when it came to her interpretation on a then-pending U.S. Supreme Court case about religious freedom, where the justices ultimately endorsed a "ministerial exception" to employment discrimination laws under the First Amendment.

Cruz asked: "Do you continue to hold those views?"

"The court has ruled, and I'm the first to admit, I called that case wrong," Pillard said. "That was a case commentators acknowledged was a difficult case going into the court."

Lee, during his questioning, said Pillard in one academic article called pro-life protesters "militant" and compared them to the Klu Klux Klan, "which I think was unfair."

Compare that reception to the first of the three D.C. Circuit nominees to get a confirmation hearing, Patricia Millett, an Akin Gump Strauss Hauer & Feld partner. Republicans praised Millett's professional qualifications but spent much of the time explaining the political rationale behind why they will fight against her confirmation in addition to two other pending D.C. Circuit nominees.

The third nominee to the D.C. Circuit, U.S. District Judge Robert Wilkins in Washington, a former Venable partner, is not expected to draw much opposition.

With Republicans strongly opposing any new confirmations to the D.C. Circuit, and the Senate embroiled in an internal partisan fight about how White House nominees are treated, Pillard’s nomination looks the most vulnerable to being left behind in any Senate deal to win confirmation votes for the appeals court.

Republicans on the judiciary committee, who are pushing a bill that would strip the D.C. Circuit of its three vacant judgeships, used Pillard’s hearing Wednesday to again argue that caseload statistics to argue that the D.C. Circuit isn't busy enough to need any more judges.

This time, Grassley brought new ammunition: Anonymous statements from sitting D.C. Circuit judges who said new judges are not needed. He said he sent a letter to the judges currently serving on the D.C. Circuit.

"I asked the judges whether, based on their experience, the workload on the D.C. Circuit warranted additional judges," Grassley said. "I also asked that those who cared to respond, to do so anonymously, so they could feel free to speak candidly." The responses do not indicate anything about the judges, including the status of the judge on the court and under which administration the judge was appointed to the bench.

Grassley reported one judge said this: "I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. … If any more judges were added now, there wouldn’t be enough work to go around."

And another judge said: "The Court does not need additional judges for several reasons. For starters, our docket has been stable or decreasing, as the public record manifests. Similarly, as the public record also reflects, each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then."

In response, Senator Richard Blumenthal (D-Conn.), who chaired the hearing, said he would "enter into the record statements from present and former members of the court who have commented—for the record, not anonymously—their views on the work load of the court."

Those included former D.C. Circuit chief judges who are now senior judges on the court, Harry Edwards, Laurence Silberman and Douglas Ginsburg. It also includes statements from former D.C. Circuit chief judge Patricia Wald, and Chief Justice John Roberts Jr., "all indicating very strongly and unequivocally that the workload of this course is certainly a tremendous challenge and growing rather than diminishing," Blumenthal said.

Comments

I think it's ridiculous to cite the Marbury Court as precedent for judicial restraint. At the time, the most common understanding of the Constitution was that it gave the Supreme Court no such supreme power to void acts of the other Branches. The Marbury v. Madison decision was downright radical ... but I think we all agree it was a necessary and appropriate decision to establish the intent and efficacy of the Constitution.

I think it's ridiculous to say that being either right or left of center should disqualify a federal appeals judge. If that were so, we wouldn't need appeals courts; we'd just rubber-stamp the middle of the road every time. America would wither on the vine.

I think it's ridiculous to say that if the Senate sees enough graffiti then "the handwriting is on the wall." Rumors and vandalism should never become self-fulfilling as the last word on how America will be governed by any of its three branches, and the Judiciary should be most independent of all.

I really do not get how the commenters to the foregoing effect can be serious. Yes, I get how they can be sincere; but how they can seriously expect to convince anyone outside their choir? To me, that looks delusional.

Well if the Democrats accept a filibuster of Nina Pillard then they are guilty of political malpractice...Enough of legislation and nominations have been lost to excessive Republican obstruction since 1/20/09...Furthermore it would show they don't fight for their nominees, unlike the Republicans, who fought hard to get 2 extremists on the DC Circuit in Janice Rogers Brown and Brett Kavanaugh..

Getting the Executvie nominees thru last week was good, but unless they get the 3 pending DC Circuit nominees confirmed, then its like winning the first 3 quarters of an NFL game, but being outscored in the fourth by a large margin and subsequently losing the game..

No judge left of center should ever be considered for any appellate judgeship, much less for associate justice on the Supreme Court.

When the Marbury Court declared its power of judicial review, it was careful to recognize the limitations of that review as being bounded by the constraints of the Constitution in determining the scope of federal laws.

Since, the Court has taken upon itself to ignore original meaning and intent of the Constitution, instead replacing purposely stringent constitutional delegations of power with its own "enlightened" expansion of same.

That is not the role of the Court, enumerated OR implied.

For this reason, anyone who espouses the politically progressive philosophy (which at its core rejects the Doctrine of Enumerated Powers and supremacy of the rights of the individual) must be denied access to the most influential seats of judicial power.

But Rick, that still begs the question of whether the DC Circuit needs them or not. Some Presidents get to appoint a number of SCOTUS justices, simply because of vacancies, while other Presidents, serving the same amount of time, get to appoint fewer or even none. For SCOTUS the number is fixed at nine. For this circuit, it depends on need. But in both cases it has nothing to do with "privileges."

You've got to hand it to Senator Grassley. Now he is coming forward with "anonymous" statements from D.C. Court judges, in addition to his already misleading use of statistics, to prove the D.C. Circuit is under-worked. Where was he with this information when the Senate approved four G.W. Bush nominees only a few years ago, we sure could have used it then!

I watched part of the hearing via webcast, and I found Ms. Pillard's answers to be thorough and well-thought out. I'm sure some of her writings will continue to draw the ire of the right. I would like to think she might have a shot at a confirmation vote sometime next year, but we shall see.